The Third Amendment Constitutional Protection From the Involuntary Quartering of Soldiers

• Author: by William Sutton Fields
• Pages: 05

1. INTRODUCTION

   Of the rights embodied in the United States Constitution, perhaps none was of greater importance to the revolutionary generation than the third amendment's prohibition against the involuntary quarter-ing of soldiers in private homes.' Although the protection afforded by this great amendment LS today widely taken for granted, it remains

   a8 one of the cornerstones of American liberty. The lack of eontroversy engendered by the nght makes tt unique and 1s indicative of the braad ~omensusas to both its purpose and meaning. The amendment 1s the only passage in the Constitution that 1s directly con-cerned with the rights of the individual vis-a-vis the military in both war and peace, and the right it secures for Americana still remains virtually nonexistent in much of the world The purpose of this art,-de is to examine the history, development, and continuing significance of this fundamental right.

   11. HISTORICAL BACKGROUND OF THE AMENDMENT A. THE ENGLISH ORIGINS

   By the time of Its adoption m 1791, the principles expressed in the third amendment had already been widely accepted in both England

   *EdUor'a Noh. This IB pad of B eontmumg series af articles and lectures that the Mllitmry Lou Reumw has published m honor offhe Bieenfennial ofthe Conbtitunon of the United States

   *-Attorney, Office ofthe Solicitor, US Department ofthe Intonor B A University

   of Vnglnla. 1976, J D , College of William and Man, 1979 Member of the bar of Virgmma, the United States Distnd Covrt for the Eastern District of Yirglnia, and the Umted States Court of Appeals for the Fourth Circuit The opinians erprasaed hersin are those of the author and do not represent the nawa of the United States Government Or any Of Its agencies or OffiC,SlS

   'U S Conat amend 111 This amendment stales "No Soldier Bhall. ~n tune of peace be quartered ~n any house. wfhout the consent of the Owner, nor ~n tlme of wm, but ~na manner to be prescribed by law''

   'Hardy, A Free Peaple'8 Inloleiable Gnrmnce-The Quansimg of Tioops and the

   Thvd Amondment, 93 Va Cavalcade 126, 13s (1984)

   and the Amencan colonies. As one of the amendments collectively known as the Bill of R~ghts,~the third amendment embodied one of the guarantees and immunities that the American colonists inherited from then English ancestors. The English origins of the amendment can be traced as far back a8 the Middle Ages, where the earliest legal enactments regulating the quartering of soldiers were embodied in the charters of towns and boroughs.' Some of those documents appeared before the Magna Carta, which contained no specific reference to qusnering but did reaffirm all the ''ancient liberties and free customs" of London and the other cities, boroughs, toms, and ports.s Examples of those early enactments include Henry I's London Charter of 1130, which contained the passage "[llet no one be billeted within the wall6 of the city, either of my household, or by force of anyone else.''6 and Henry I h London Charter of 1156, which provided "that within the walls no one shall be forcibly billeted, or by the assiplment of the marshal."' A similar provision also appeared in John's Ipswlch Charrei of 1200.8

   These early legal restraints on involuntary quartering were applicable only in their respective jurisdictions and did not extend to the countryside.

   During the Middle Ages the manner of lodging and feeding soldiers suffered from a lack of centralized control? Obligations or immuni.

   '1 B SehKalrr The Bill of Rights. A Documentary History 3 11871) ithe Bill of Rights consists of the first tan amendmentb to the Constrtutmn) Cmlm L Tribe. American Conatitutianal Law 5 18-1 sf 1147 n 1118781 ithe Bill of Rights cansmls of only the first eqht amendments)

   'Hard,, supm note 2, at 126 If wm not until a t h the Norman Conquest ~n 1066 that the concept of the involuntary quanenng of soldiers began to rake on n a recog. niied identity In Saxon hmes the problem would have been af leeaer concern Sman defenseewere baaed upon thenrd. a militis ofall eble-badiedm.nthatwasonlgEalled up from the district threatened with etleck Ssrvire in the fird was uivally of short duration andfhe palricipanfsaereabligatedta provide theirownarmPandpraviiions The only profeaaional soldiers during that period were the eontingenrs of hDueriarla mainlamed by the kings and earl% These eantingenta were mall in number because of their expense Afier the Conquest. this system WBL modified by William of Xormandy, who datnbured the land to hlr followers LO be held on B ~yatem of mililari fmum lfsudalam) Each such enteta w e obligated to provide B pmrticvlar number of knights far military ~PNLEB Beginning in thr twelfth century. the system ofscutage was Intraduced, which allowed the barons fo pay B &xed sum instsad of actually producing knighia far ssrvice Tho King could then m e the money to hire prolessianal Boldiers mere amenable to hia control It was m the centrahmtlon of Sormsn NIP.the mlhfBn ~ ~ t m n

   of the country. the abuse of the Saxon mhrbrianfa, and the lnvolvement ~n

   continental ware that the grievance sgarnstthe ~nudunfaryquanermg ofsvldiars firnt

   h k mot

   jC Stephenson & F Mareham, Sources of English Cansfitutmnal History 115. 117

   'D Douglas & G Greenway, Englmh H~smnc~I

   Doeurnems 1042-1189, 8r 845

   ,Id at 816'C Stephenson & F Mareham, ~upmnore 5, at 86BHardy, supra nore 2, at 127

   19891 THIRD AMENDMENT

   ties relating to billeting were embodied in the local charters." The authority to admit soldiers into the city and to determine where and in what number they would be lodged was vested by the charters in town marshals or constables." These charters also prohibited the quartering of soldiers in a dwelling without the consent of the

   Soldiers lodged in civilian homes were supposed to pay for anything they took The usual method ofpayment was chits, tallies, or billets that could be redeemed from the government or used far the payment oftaxes." The receipt8 given by the soldiers, however, oftenproved worthless, and the legal prohibitions against involuntary quartering found in the charters were continually violated.'6 This situation remained essentially unchanged from the thirteenth through the sixteenth centuries.18 In the sixteenth century attempts at mare centralized control were made by the Tudors.17Thase efforts, however, which involved the appropriation of "coat and conduct money" and the appointment of Lords Lieutenant, did not solve the quartering problem.''

   In the seventeenth century problema associated with the quarter. mg of soldiers during the re%n of the Stuarts became one of the issues propelling the nation toward civd war Is The ~cience of loglstlcs had lagged behind the development of the large, modern amy; and, for political reasons, the House of Commons had been unwilling to pro.

   "Id. "Id

   ::!$

   '.Id

   "Id The abuse oftha clnhen papulation by soldmrs during the Mlddlo Ages is well documented. In that era. Engheh soldlern often demanded free food and shelter from clmllan households while ~n tranmt y1 and from the Continental ward Tho campialnt by a man, described inPvrs Plowman, that he had Inst hx wlfe. barn. hveslack, and the maidenhod of B e daughter to soldxrs 18 tmlcal of tho gr~evanees of that time Complaints iueh 81 that are not surpnsmg, cansidering the 1args number af trampi beggars, and criminal8 that were regularly pressed mto mihlary serv~ce In B sln& sear. Edward I pardoned 460 murderers and nurn~r~wleasel offenderñn exchange for

   them B ~ ~ V L C B

   ~n the army '"Id111,

   "Id C Stephenson & F Mareham. supm note 5. ~t 386400 Se~pnemlly G Thom-BOD, "Hardy, supm note 2, at 127 It was dunma this wnod that the mme of mvolunm~ hrda Lieulsnants m the Slrteenth Cenfun. (18231

   I97

   vide the revenue necessary to pay for adequate barracks or for billet-mg In inns Those situations left soldiers with no choice but TO seek quarters in private homes The popular dissatisfaction that resulted from those circumstances found expressmn ~n the Petmon of Rlght presented to Charles I by the Lards and Commons of Parliament in1628 22 Included m the Petition was the grievance.

   whereas of late, great companiea of soldiers and mariners have been dispersed into divers counties of the realm, and the Inhabitants, against their wills have been compelled to receive them into them houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people.23

   Incorporation of that gnevance...